This guest post was written by Alix Schlüter, Ph.D. researcher at Bucerius Law School, Hamburg.
On May 24th 2016 the Grand Chamber found that the refusal to grant family reunion to a Ghanaian couple in Denmark violated Article 14 ECHR in conjunction with Article 8 ECHR. Overruling the Chamber’s judgment of 2014, the Court held by a majority of twelve votes to five that Danish Laws on Family Reunification in part constituted indirect discrimination on the basis of ethnic origin. In the past, the Court for the most part has confined itself to finding violations of the prohibition of discrimination on grounds of race or ethnic origin merely in certain tightly circumscribed case groups, namely cases concerning school segregation of Roma children and racist violence cases. Against that background, the ruling in Biao must be seen as a big step – all the more as critics have proclaimed that the Court might not yet have developed a satisfactory approach to cases of indirect discrimination. The implementation of the judgment by the Danish government, however, has to be awaited with some uneasy suspense. It might result in leaving Danish nationals of non-Danish ethnic origin seeking family reunification worse off.
The facts of the case
The applicant, Mr Biao, a Danish citizen of Ghanaian origin born in 1971, had been living in Denmark since 1993 and was granted Danish nationality in 2002. Finally, in 2004, he wanted to settle in Denmark with his second wife, a Ghanaian national whom he had met and married during a visit to Ghana. The couple had a son who was a Danish citizen due to his father’s nationality. Mrs Biao’s request for family reunification in Denmark was rejected, as well as her unsuccessful appeals. The couple is currently living in Sweden.
According to Danish laws on family reunification (the “Aliens Act”), a residence permit is generally granted if the “attachment requirement” is fulfilled, which means that a couple’s aggregate ties to Denmark are stronger than those in any other country. In order to counterbalance unfavourable and unintended consequences of the attachment requirement on Danish expatriates, in 2003 the “28-year rule” was introduced. Under the terms of the 28-year rule the attachment requirement does not have to be satisfied if one spouse has been a Danish national for at least 28 years or, in case of non-Danish nationality, has been born and/or raised in Denmark and has lived there lawfully for 28 years. For Mr and Mrs Biao, claiming family reunion in 2004, neither the 28-year rule applied nor did they fulfil the attachment requirement: Mrs Biao had never been to Denmark before her marriage, she did not speak Danish, and the couple had met and married in Ghana.
Mr and Mrs Biao claimed that the dismissal of their request for family reunification violated Article 8 ECHR and Article 14 ECHR in conjunction with Article 8 ECHR. In particular they argued that the 28-year rule amounted to indirect discrimination on grounds of race or ethnic origin: Despite its ethnically-neutral wording, in fact the great majority of persons satisfying the rule’s requirement of having been born or raised in Denmark or having lived in Denmark as a Danish citizen for 28 years would be of Danish ethnic origin. Persons who had not been born or raised in Denmark – which would most often coincide with them being of other than Danish ethnic origin – on the contrary would satisfy the 28-year rule only after the common age for family formation had already passed.
The Chamber considered the interference with the right to family life under Art. 8 ECHR to be justified. Moreover, the Chamber denied that the 28-year rule constituted indirect discrimination on grounds of ethnic origin. It found, however, that the rule resulted in unequal treatment between persons depending on the length of their period of Danish citizenship. Although this amounted to a difference in treatment on account of “other status” within the meaning of Article 14 ECHR, the Chamber held that it was justified.
The Grand Chamber’s ruling and its deviation from the Chamber’s findings
The Grand Chamber departed from the Chamber’s findings in several decisive points. Most importantly, it found the 28-year rule to be at odds with the prohibition of indirect discrimination on grounds of ethnic origin. The Grand Chamber analysed the impact of the 28-year rule on different groups of people and found that it “places at a disadvantage, or has a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.” (§138). Even though the Danish government had failed to produce sufficient statistics describing how many people of Danish and non-Danish ethnic origin had been granted family reunification pursuant to the 28-year rule, the Grand Chamber analysed how far people of Danish and of non-Danish ethnic origin were able to avail themselves of the 28-year rule and found a clear disparity placing people of non-Danish ethnic origin at disadvantage.
The Chamber on the contrary, implicitly requesting discriminatory intent as a precondition for a finding of indirect discrimination, had failed to identify indirect discrimination on grounds of ethnic origin inherent in the 28-year rule: It held that according to the Aliens Act’s preparatory works its only aim, in stark contrast to any racist motivation, was to create an exemption in favour of persons of whom it could reasonably be assumed that they had adequately become integrated in Danish society, which would very likely be the case if a person had been living in Denmark for at least 28 years. Moreover, the Chamber had reemphasized the principle established in Abdulaziz, Cabales and Balkandali v. the United Kingdom that the contracting state parties were generally free to grant preferential treatment to their citizens vis-à-vis non-nationals in matters of immigration policy. Since nationality often coincided with a certain race or ethnic origin, this legitimate policy might result in disadvantageous treatment to people of other ethnic origin, without amounting to discrimination prohibited by Article 14 ECHR. As a result, the Chamber had found that the 28-year rule only treated differently people on account of the length of their Danish citizenship, which amounted to direct discrimination within the meaning of “other status” in Art. 14 ECHR – and a difference in treatment on grounds of other status could much more easily be justified than a difference in treatment based on grounds of race.
Identifying ethnic origin as the relevant discrimination ground and starting point of the analysis, predetermined the outcome of the Grand Chamber’s ruling. The Court reiterated its long-established case-law that “no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society. Discrimination on account of, inter alia, a person’s ethnic origin is a form of racial discrimination.” (§ 93). The Grand Chamber, having just identified a case of different treatment based on ethnic origin in the case at hand, thoroughly investigated the Aliens Act’s aims and found that its main assumption of a necessary correlation between the duration of stay and the level of integration in Danish society was quite speculative. Moreover, the Grand Chamber noticed that the presuppositions underlying the 28-year rule were influenced by negative stereotypes against the lifestyles of Danish nationals of non-Danish ethnic origin, especially their supposed marriage patterns (§ 126). However, instead of dropping the question of justification at that point by declaring the lack of a legitimate aim, the Grand Chamber went further in its examination.By comparing legislation from Council of Europe Member States and provisions in international legal instruments, most importantly the European Convention on Nationality, the Grand Chamber found a “certain trend towards a European standard” (§ 132) stipulating a rule of equal treatment of all groups of nationals regardless of whether they were citizens by birth or have acquired nationality subsequently. All in all, the Grand Chamber found that the (indirect) difference in treatment between Danish citizens of Danish and non-Danish ethnic origin was not justified, given that the State’s margin of appreciation in the case at hand was very narrow (§ 138).
First and foremost, the Grand Chamber’s ruling has to be applauded. It places Article 14 ECHR, which was sometimes referred to as the “Cinderella” of Convention rights due to the Court’s sparse examinations of that provision, at the heart of its analysis and finally seems to pave the way to a more strict and bold scrutiny of cases of alleged discrimination on grounds of ethnic origin whose absence has, apart from first laudable steps in recent years, often been regretted by commentators and within the Court (see Judge Bonello’s famous partly dissenting opinion in Anguelova v. Bulgaria).
The Grand Chamber, unlike the Chamber, discharges itself from the undesirable legacy of Abdulaziz that found British immigration laws not to be in violation of Article 14 ECHR on grounds of race discrimination, basically due to the law’s neutral wording and its “objective”, i.e. non-racial, aims, in others words: the absence of a discriminatory intent. In Biao, the Court refrained from requiring proof of discriminatory intent, and was, upholding its approach in Hoogendijk v. the Netherlands, ready to accept proof of discriminatory effects by means of statistics. It has to be highlighted as extremely positive that the Court unmasked the negative stereotypes underlying Danish laws as regards the presupposed marriage patterns of Danish nationals of foreign extraction and their (in-)ability to integrate in Danish society. Apart from these praise-worthy advancements in legal reasoning the judgment is an essential step to strengthen the right to family reunification under the Convention.
However, there are some aspects in the Grand Chamber’s ruling that leave the observer with an uneasy feeling. First, it is hardly understandable – and was also criticized by Judge Pinto de Albuquerque in his concurring opinion – why the Court examined with so much diligence whether the de facto difference in treatment between Danish citizens of Danish and non-Danish ethnic ancestry had an objective and reasonable justification:After having disclosed that the preparatory works of the Aliens Act were largely influenced by contestable clichés, nothing would have been easier for the Court than stating that the 28-year rule did not pursue a reasonable aim and that hence the difference in treatment was not justified. By first reiterating the principle that difference in treatment on grounds of ethnic origin can only be justified by “very weight reasons”then skilfully leaving the question of the legitimacy of the aim of the 28-year rule unanswered and finally eagerly scrutinizing the law’s preparatory materials for an objective justification, the Court to some extent weakens the dogma that treating people differently on account of their race can hardly be justified under the Convention. Maybe the Court’s looking for “objective factors” has to be understood not as a the search for reasons in the sense of “aims” that could justify the difference in treatment, but rather as not race-related “causes” for the different impact the 28-year rule had on people of different ethnic origin apart from their race.
Even more important, however, is how the Danish government’s interpretation of the judgment will turn out and whether the judgment can be implemented without downgrading the level of support currently provided for to people seeking family reunification under Danish laws. As the dissenting judges Villiger, Mahoney, Kjølbro and Yudkivska rightly pointed out, the only feasible, or at least the most obvious way to wrestle the conflict of the 28-year rule with the principle of non-discrimination seems to be to abolish it completely. As a result, the overall chances for couples of different nationalities to be granted family reunification would be diminished, regardless of their ethnic origin, a dilemma of equality law that has been referred to as “levelling down”. Some (more) guidance from the Court as regards the desirable implementation of the judgment would have been helpful.
 See, among others, Altwicker, Menschenrechtlicher Gleichheitsschutz (2011), p. 270.